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MSPB Gained Quorum for the First Time in 5 Years

Thanks to the confirmation of a third board member, the Merit Systems Protection Board (MSPB) has been able to begin working through its backlog of federal employment law appeals. The MSPB has a quorum (the minimum number of voting members) for the first time in 5 years and can hear adverse action appeals “almost immediately.” The backlogs and delays were the result of continued Congressional deadlock on the issue.

The Newest Members

The newly sworn in members of the MSPB are qualified and have crucial experience to bring to the table. Most importantly, with these new additions, the MSPB has started handling the backlog and navigating the other issues with the case review process.

Cathy A. Harris

Newly confirmed acting Chairman, Cathy A. Harris was confirmed on June 1, 2022. Harris has served as Vice Chairman and co-manager of the firm Kator, Parks, Weiser & Harris, PLLC. She served as the Chair of the firm’s sexual harassment and LGBT discrimination arm. She also has extensive experience in the realm of employment law.

Raymond A. Limon

Raymond A. Limon was confirmed on March 1, 2022. He has served as the Deputy Assistant Secretary for Human Capital and Diversity and the Chief Human Capital Officer. His Directorate managed the Department of the Interior’s evaluation and oversight programs including occupational safety and employee development.

Tristan L. Leavitt

The newest member of the MSPB is Tristan L. Leavitt who was confirmed on March 1, 2022. Leavitt has extensive experience in federal employment matters and has served in many roles within the agency. He spent eight years working on Capitol Hill investigating government waste, fraud, and abuse as well as overseeing legislative accountability issues. He served as an executive on the board in the absence of Senate confirmed board members.

Addressing a 3,600-Case Backlog

Because the board has lacked a quorum for the past 5 years, there are currently more than 3,600 cases awaiting MSPB attention. Although administrative judges have been handling as many of these cases as possible, the board can finally step in and make decisions.

While those awaiting decisions may be happy to finally hear an answer, there will still be delays before many decisions are issued because of the long back long, and the lack of explanation in some cases and interpretation of those decisions can require the assistance of legal counsel familiar with this venue.

Further, often times, because of agency actions impacting an employee’s financial status or subjecting employees to difficult working conditions, employees need advice on how to manage until a decision is issued.

However, keep in mind, this backlog does not apply to appealing an initial adverse action issued by an agency employer to an employee to the Board (i.e. Notice of Termination, Notice of 15+ day suspension, demotion effecting pay), which initially will be assigned to an Administrative Judge for a litigation period resulting in a hearing (or administrative trial). It is primarily only after a decision is issued at this stage that an appeal to the Board, which now has quorum, becomes relevant. Thus, you should not fail to appeal an adverse action to MSPB for fear of the delays you heard about relating to the lack of Board quorum over 5 years. Often, MSPB can be a venue that allows you to address the most laws and rights my having jurisdiction over multiple laws effecting a decision issued to an employee, unlike other venues, like the EEOC or a grievance process. However, these channels and decisions are best navigated with an experienced attorney.

Options for More Immediate Action on Appeal Following a Hearing with an AJ

Federal employees appealing their adverse actions after a hearing with an AJ also can usually take their case to the U.S. Court of Appeals for the Federal Circuit for faster assistance rather than appealing to the Board, and many have already done so while previously waiting for the MSPB to re-establish a quorum.

For that method of appeal, however, federal employees must hire a lawyer to guide them through the judicial process.

Attorneys Can Help

While the MSPB, is working tirelessly to address issues and many feel optimistic that the quorum will be able to overcome these hurdles effectively, a private attorney can help you watch over your employee rights and assist you in holding your agency accountable in the meantime.

Further, even when the MSPB approves a delayed appeal, reinstating employees or awarding back pay and missed benefits may take time and having experienced legal counsel assist you in ensuring your agency complies with all aspects of a decision can help ensure you are not back at the MSPB requesting intervention due to non-compliance with a decision. For example, after 5 years, roles may be unavailable for reinstatement, and it may be more difficult to calculate back pay and benefits or to be reinstated into an appropriate position.

That is where Legal Lion Employment Law Firm can help. We are exclusively dedicated to standing up for the rights of federal employees, and we can help make sure your voice is heard.

Instead, call us at (813) 437-4447 or contact us online for a free consultation and fierce, strategic & relentless federal employment advocacy.